TM v The King

Case [2024] SASCA 5

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

TM v THE KING

[2024] SASCA 5

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice Kimber)

8 February 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE

CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS

CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY

Following a trial by Judge alone, the applicant was found guilty of six counts of rape committed over a period of about 13 years.  The complainant was the partner of the applicant.  There was evidence of an initial complaint with respect to Count 6.  The complaint was made to a friend of the complainant and there were differences in the evidence of the complainant and the friend, including as to what the complainant said.  The applicant did not give evidence.  In submitting at trial that the prosecution had not proven any count beyond a reasonable doubt, the applicant relied on what were said to be inconsistencies in the evidence of the complainant and other criticisms of her evidence. 

The applicant appeals his convictions on three grounds. The three grounds advance several complaints which include the following contentions. That the trial Judge erred in his approach to the evidence of initial complaint, including by failing to give that evidence limited weight; not limiting the use of the initial complaint to Count 6; and in failing to direct himself in the terms set out in s 34M(4)(c) of the Evidence Act 1929 (SA). That the trial Judge erred in his evaluation of the credibility and reliability of the complainant, including by not considering the whole of the evidence; failing to appreciate that a finding that the complaint was credible and reliable was not sufficient to establish guilt; and by engaging in circular reasoning. That the trial Judge engaged in inadequate reasoning or, in the alternative, that the reasons were inadequate.

Held per the Court, granting permission to appeal and dismissing the appeal:

1.The trial judge did not err in his approach to the evidence of initial complaint. It was open to the trial Judge to accept the evidence of the complainant where it differed to that of the friend to whom the complaint was made. Having done so, there was no obligation to give the initial complaint limited weight. The directions in s 34M(4)(c) were not given, but they are not mandatory in trial by Judge alone. In the circumstances of this case, there is no error in the trial Judge not directing himself in terms consistent with that sub-section. The trial Judge limited the use of the evidence of initial complaint to Count 6.

2.The trial Judge did not err in his assessment of the credibility and reliability of the complainant.  The trial Judge did not fail to…

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TM v The King [2024] SASCA 5
Case
[2024] SASCA 5
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction recorded on a guilty plea by the applicant, TM, against the respondent, The King. The dispute arose from allegations of sexual offences, specifically rape and sexual assault, against the applicant's former partner, EN. The case was heard by Doyle, Bleby, and Kimber JJ.

The legal issues before the court included the admissibility and weight of evidence relating to an initial complaint made by the complainant, EN, to a friend, AT, concerning an alleged sexual assault. The court was required to consider the discrepancies between EN's account of the complaint and AT's account, and how these discrepancies affected the assessment of EN's credibility and the overall evidence presented at trial. The applicant also raised contentions regarding the trial judge's approach to the evidence, which the court considered in its determination.

The court's reasoning focused on the evidence of the initial complaint, noting that while there were differences in the precise details of the conversation between EN and AT, both agreed that EN had spoken about sexual activity with the applicant and expressed that she did not want it to occur. The court found that these discrepancies did not render EN's evidence unreliable, particularly in the context of a guilty plea where the applicant had admitted the conduct. The court applied principles relating to the admissibility of complaints in sexual offence cases and the assessment of credibility, ultimately concluding that the trial judge's approach was sound.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

We grant permission to appeal but dismiss the appeal. Our reasons follow. Background Before turning to the issues in the appeal, it is helpful to summarise some of the evidence at trial. The relationship The complainant and the applicant were in a relationship for about 14 years and have two children, LM born in March 2006 and ZM born in October 2009. The relationship commenced in around August 2004 and the applicant and EN began living together at Walkerville a short time later, before marrying in March 2009. The relationship came to an end in March 2019 when the applicant left the family home. The complainant described the start of the relationship as ‘good’ and that there were ‘good times’ prior to the first alleged rape. Within the first few months of the relationship, however, the complainant noticed the applicant becoming aggressive. The complainant described the applicant having aggressive outbursts, with the first occurring in October 2004 and then about a month later in November 2004. Following these outbursts, the complainant described the applicant as often being angry. EN gave evidence that sexual violence started between January and May 2005.[2] [2] Trial Transcript 61. EN said that leading up to their marriage and the birth of their second child in 2009, the relationship was ‘really good’. However, EN said that following the birth of their second child, the relationship deteriorated. EN said the relationship began to improve again in 2010 and that there were only a few incidents of non-consensual sexual intercourse. EN said that the relationship began to deteriorate again in 2014, with the applicant’s violent behaviour and non-consensual sexual intercourse continuing through to 2018. In March 2019, the complainant told the applicant to leave the home. Count 1 Count 1 was an act of anal intercourse and the first time the applicant was said to have raped EN. EN placed this incident between January and May 2005. EN said that the applicant came home intoxicated after performing with his band. EN was sleeping. She said the applicant slid into bed next to her, placed his arms under her shoulders and pulled her underwear aside. The complainant said to the applicant, ‘No I don’t want to’ and as he inserted his penis into her anus, she continued to tell him to stop. The complainant said she could not struggle away because the applicant had his arms under her shoulders. The applicant then rolled the complainant onto her back and had penile vaginal intercourse with her. EN said the applicant ejaculated on her stomach. In cross-examination, it was established that in an affidavit before trial EN had stated that the applicant ejaculated on her back not her stomach. The complainant said that after the first incident of rape and prior to Count 2, there was consensual sexual intercourse. The complainant stated that if the applicant initiated sexual intercourse, she was clear with a ‘yes’. Around the time of the first incident, however, the complainant also described increasingly violent behaviour by the applicant with him pushing and shouting at her. EN attributed this to the applicant being unhappy about them not having sexual intercourse in the lead up to the violent outbursts. Count 2

Evidence

Evidence Before The Court

In oral submissions, the applicant advanced four contentions about the approach of the trial Judge not all of which are within the particulars of Ground 1. Nevertheless, all will be dealt with. Before dealing with the contentions, we set out the evidence of the initial complaint and relevant aspects of the reasons of the trial Judge. The evidence On the prosecution case, somewhere between a couple of days or a little over a week after Count 6, EN spoke to AT about what had occurred during the incident the subject of that count. EN and AT were in the habit of attending the gym together. At trial, there was no dispute that they had done that on 18 December 2018 and that on that day, EN spoke to AT about sexual activity with the applicant. Nevertheless, as will be seen, there were differences in the evidence of EN and AT. First, as to whether the conversation occurred in the car or at the gym. Second, as to what was said. EN said that on 18 December 2018, she collected AT from her home and drove her to the gym. In evidence in chief, EN said that during the drive she told AT that after the gym party the applicant had performed oral sex on her while she was asleep and ‘that [the applicant] then raped me’. When asked in cross examination what she had said to AT, EN said: ‘I told her about the rape, that he was performing cunnilingus on me, I was in shock, and I hadn’t allowed him to have sex with me, but he did, and I said “no”, that’s why I was angry about it and told [AT]’. AT gave evidence. AT confirmed that EN had spoken to her in December 2018 but placed the conversation as having occurred at the gym. AT said that EN told her that she had been really drunk after the gym party, upon leaving the party she went to her next-door neighbour’s house and consumed more alcohol there before returning home. AT said that EN told her that the applicant ‘had his way with her… and that she didn’t want him to do that’.[3] [3] Trial Transcript 207. AT was asked about the words used by EN and said:QDo you recall were they the words used, or were there any other words that you can recall.AWell, pretty much, it was really uncomfortable, yeah. And she said to me that she didn't want him to do that, and she felt really ashamed. Something along that - it was really too hard to talk, there were people all around us.QDid she tell you what she meant by [TM] having his way with her.ASex, sexual intercourse.QIs that what she said to you.AYes.HIS HONOURQWhat words did she use.AAlong those sort of words, that - like she said he had his way with her, he had sex with her, and he said that - she said to me that she didn't want to do it, but she said she was really drunk and she said it was - and I said 'Oh it sounds horrible'. Honestly I tried to cut it short, because there's so many people around us, and I felt like it wasn't the place to be talking about this.XNQDid [EN] tell you what she was doing while [TM] was having sex with her, had his way with her.ANo. She just told me she was really drunk.QShe told you she didn't want him to do that.AThat's - yes, she did say that.QWere they the words, or were there other words she used.ANo, she just said to me that she didn't want that to occur. Something, you know, like feeling ashamed or uncomfortable. I don't know, honestly, because I did try to cut it short. Honestly, to tell you the truth, I just felt it wasn't the place for us to be chatting about this sort of stuff, because everyone around us all know us from that area, like we know everyone there.[4][4] Ibid 207–208.The approach and findings of the trial Judge

Decision

Reasons for decision

We dismiss Ground 3. Conclusion We grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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